Hare v. Motor Vehicle Administration

ROBERT M. BELL, Judge. Sterling Russell Hare, Sr. (“Hare”), petitioned for certiorari, requesting that we consider whether it was fundamentally unfair for his driver’s license to be suspended for his refusal to take a chemical test for alcohol concentration when he was not advised that if he took the test and failed, but met certain conditions, the Motor Vehicle Administration (“MVA”), could modify the suspension or issue a restrictive license. We granted the petition and now affirm. I. Hare was stopped on suspicion of driving while intoxicated and subsequently arrested on that charge.

Having refused to take a chemical test for alcohol concentration, he requested a hearing to show cause why his license should ²⁹⁸ not be suspended. At that hearing, the following facts were developed. Officer Howard Jones, Jr. observed Hare driving erratically, almost striking several parked cars. He stopped Hare and, at that time, made certain observations which led him to place Hare under arrest.

He noticed that there was a strong odor of alcohol on Hare’s breath, that Hare staggered when he walked, that his speech was slurred, and that he had “wet” his pants. At the Central District Police Station, Officer Jones read from the DR-15 advice of rights form, advising Hare that, as relevant to this case: You have the right to submit to the test. Your refusal shall result in an administrative suspension of your Maryland driver’s license or your driving privilege if you are a nonresident. The suspension by the Motor Vehicle Administration shall be for 120 days for a first offense and one year for a second or subsequent offense.

If you submit to a test which indicates an alcohol concentration of 0.10 or more, it shall result in an administrative suspension of your Maryland driver’s license or your driving privilege if you are a non-resident. The suspension by the Motor Vehicle Administration shall be for 45 days for a first offense and 90 days for a second or subsequent offense. See Maryland Code (1977, 1987 Repl.Vol., 1991 Cum.Supp.) § 16-205.1 et seq. of the Transportation Article. 1 This form did not refer to § 16-205. l(m), 2 which permits the Motor ²⁹⁹ Vehicle Administration to modify a suspension or issue a restrictive license. Nor did Officer Jones, who was himself unaware that a driver who refused the test was ineligible for modification of suspension or a restrictive license, advise Hare of that consequence of refusal. 3 Hare testified that he, too, was unaware of that consequence of refusing the test and that, had he known, he probably would have taken the test.

Following the hearing, the Administrative Law Judge (ALJ) made the findings required by § 16 — 205. l(f)(8)(i), that: (1) Officer Jones had reasonable grounds to believe Hare was driving while intoxicated; (2) there was evidence of alcohol consumption, (3) Hare was “fully advised of the administrative sanctions that shall be imposed”; and (4) Hare refused the test. Consequently, pursuant to § 16-205.1(f)(8)(v), he suspended Hare’s license for 120 days. On appeal to the Circuit Court for Baltimore County, Hare argued that he had not been fully advised of the “administrative sanctions that shall be imposed” when he refused to take the chemical test. Specifically, he urged ³⁰⁰ that non-eligibility for a modification of suspension or a restrictive license of a person who refuses the test is “an administrative sanction” of which he should have been advised pursuant to § 16 — 205. l(b)(2)(iii) 4 and that he was denied due process when he was not so advised.

We have today held that § 16 — 205. l(b)(2)(iii) does not require a police officer to advise a driver of the mere possible eligibility for a modification of suspension or a restrictive license should that driver take and fail a chemical test. Motor Vehicle Administration v. Chamberlain, 326 Md. 306, 316-17 , 604 A.2d 919, 923-24 (1992). The only advice that the officer must give the driver, we said, is that which is specifically set out in § 16-205.1(b)(l). 5 326 Md. at 317 , 604 A.2d at 924 . To the extent that Hare’s argument depends upon the construction of § 16-205.1, Chamberlain ³⁰¹ is dispositive. 6 II.

Hare’s principal argument is that it is fundamentally unfair, hence, a denial of due process, to suspend a driver’s license without first advising the driver “fully” of the applicable administrative sanctions. The MVA characterizes this argument as seeking to require advice as to “all of the different possible outcomes of a hearing, depending on whether the licensee takes the test and fails or refuses the test.” However characterized, the argument is not persuasive. Accordingly, we hold that Hare was not denied due process. “The continued possession of a driver’s license ... may become essential to earning a livelihood; as such, it is an entitlement which cannot be taken without the due process mandated by the Fourteenth Amendment.” Sites v. State, 300 Md. 702, 717 , 481 A.2d 192, 200 (1984), citing Dixon v. Love, 431 U.S. 105 , 97 S.Ct. 1723 , 52 L.Ed.2d 172 (1977) and Bell v. Burson, 402 U.S. 535 , 91 S.Ct. 1586 , 29 L.Ed.2d 90 (1971). See also Brosan v. Cochran, 307 Md. 662, 672 , 516 A.2d 970, 975 (1986).

Under § 16-205.1(f)(8)(v), if certain ³⁰² conditions, not here relevant, are met, see § 16 — 205. l(f)(8)(i), whether a driver refuses to take a chemical test for alcohol concentration, or takes it and fails, i.e., the test results reveal an alcohol concentration of 0.10 or more, the driver’s license will be suspended. There is, however, a significant difference between the length of the suspension depending upon whether the test was refused or failed: the suspension for refusal is more than twice as long as for failing the test. But there are other consequences attendant to a test refusal that do not apply to a test failure. A driver who refuses the test may not have his or her license suspension modified or be issued a restrictive license. § 16-205. l(m)(2).

Furthermore, that driver’s insurance company could consider the suspension in increasing the driver’s insurance premiums, Maryland Code (1957, 1991 Repl.Vol.) Art. 48A §§ 242(c)(7)(iv) and 244D(e)(4); see § 16-117(b)(2), or to reject or cancel the driver’s policy. Section 243D(a) and (c). As under the old law, the Maryland statute does deliberately give a driver a choice between potential sanctions affecting vitally different interests. Sites, 300 Md. at 717 , 481 A.2d at 200 . “Thus, drunk driving suspects have a significant interest at stake in deciding whether to submit to the State-administered chemical sobriety test.” Brosan, 307 Md. at 672 , 516 A.2d at 975 .

If they refuse the test, as we have seen, their licenses will be suspended, without possibility of modification or of obtaining restrictive licenses, and the suspensions may be considered by insurance companies in setting insurance premiums. If, on the other hand, they take the test and fail, their licenses will be suspended for a shorter period, but the suspensions could be modified or restrictive licenses issued and, if it is for a first offense of driving with an alcohol concentration of 0.10, the suspension may not be considered by an insurance company in setting insurance premiums. We have already held that § 16-205.1 requires only that the driver be informed of the certainty, and length, of suspension for refusal, as well as for failure, of the test. The critical inquiry, therefore, is whether due process re ³⁰³ quires the officer also to advise a refusing driver of either or both of the other consequences we have identified.

What process a defendant is due is, of course, dependent upon the facts and circumstances of the case. Sites, 300 Md. at 716 , 481 A.2d at 199 (“the exact contours of the due process right are not definable with precision”); see also Hewitt v. Helms, 459 U.S. 460, 472 , 103 S.Ct. 864, 871 , 74 L.Ed.2d 675, 688 (1983); Brosan, 307 Md. at 671 , 516 A.2d at 975 . To make that determination, we have to “examine the importance of the life, liberty, or property interest at stake and the extent to which the questioned procedure might produce the possibility of uninformed decision-making. Against the individual’s interest, [we] must weigh the State’s legitimate competing interest, which necessarily includes the avoidance of the increased administrative or fiscal burdens resulting from the requested procedure.” Brosan, 307 Md. at 671-72 , 516 A.2d at 975 , citing Matthews v. Eldridge, 424 U.S. 319, 335 , 96 S.Ct. 893, 903 , 47 L.Ed.2d 18, 33 (1976).

As we have seen, Hare’s interest in his driver’s license is an important one. Juxtaposed against that interest is the State’s interest in protecting its citizens from drunk drivers and, as a means of doing so, encouraging suspected drunk drivers to take the test, thus facilitating their prosecution. See State v. Werkheiser, 299 Md. 529, 533 , 474 A.2d 898, 900 (1984). See also Motor Vehicle Administration v. Shrader, 324 Md. 454, 464 , 597 A.2d 939, 944 (1991).

The final factor to be considered is whether the procedure chosen enhances informed decision-making. The statute, as we have seen, mandates that a driver be given advice which contrasts the consequence of a refusal of the test with that for a failure of the test. That contrast is stark enough — the length of the suspension in the former case being twice as long as in the latter — to be an incentive, by itself, to take the test. Hare suggests that, because § 16-205.1(m) provides a further incentive for taking the test — by taking the test the driver remains eligible for a modification of suspension or a restrictive license — as a ³⁰⁴ matter of due process, he should